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Will Climate Change the Courts?

David A. Murray, The New Atlantis

In suing for “climate justice,” the “children’s climate crusade” aims to subvert the democratic process.

WASHINGTON, DC – OCTOBER 29: Protesters attend a rally outside the U.S. Supreme Court held by the group Our Children’s Trust October 29, 2018 in Washington, DC. The group rallied in support of the Juliana v. U.S. lawsuit brought on behalf of 21 youth plaintiffs that argues the U.S. government has violated constitutional rights for more than 50 years by contributing to climate change. (Photo by Win McNamee/Getty Images)

Disillusioned by politics, and especially by democracy, a large group of well-funded climate activists has decided that the courts offer the best hope for achieving what they call “climate justice.” To date, these groups have launched, funded, or staffed scores of coordinated lawsuits around the world. Following a well-established strategy for using the court system as a vehicle for political action, many include carefully chosen individual plaintiffs who claim various climate harms.

In the U.S., the cynosure of climate litigators’ hopes is Juliana v. United States, which its supporters call the “trial of the century.” Part of a broader campaign popularly known as the “children’s climate crusade,” Juliana is brought by twenty-one “youth plaintiffs” — children and teenagers, who ranged in age from 10 to 19 when the lawsuit was filed in 2015. The plaintiffs’ claim is sweeping: By failing to stabilize atmospheric carbon levels, the federal government has failed to protect their constitutional rights. Whereas many climate suits seek financial compensation for past damages, Juliana seeks massive policy changes.

Mary Christina Wood, a University of Oregon law professor and climate change activist, has been a key influence on many of these lawsuits through her proposal of a legal approach called “atmospheric trust litigation.” This strategy “calls upon the judicial branches of governments worldwide to force carbon reduction on the basis of their fiduciary responsibility to protect the public trust,” as she wrote in a 2012 book. Wood is fond of breathless and colorful catalogs of climate horribles:

Should business as usual continue even for a few more years, future humanity for untold generations will be pummeled by floods, hurricanes, heat waves, fires, disease, crop losses, food shortages, and droughts as part of a hellish struggle to survive in deadly greenhouse conditions.

Because “there has been little action at either the international or national level” to address this crisis, Wood argues that “exclusive reliance on the political branches for climate response now seems ill-advised.”

As proponents freely allow, the aim of these lawsuits is more than a legal victory; it’s publicity for the cause, shaping public opinion and turning the court system into a sustained front in the war over climate change. The strategy is a sort of asymmetrical lawfare. It attacks the tort system on a number of its core doctrines, including traditional concepts of individual actors, liability, and clear lines of causation, all of which climate activists consider outmoded in the face of a planetary crisis. And while the defendants must win nearly every battle to maintain the status quo, the climate litigants can lose many, perhaps needing only a single major victory — especially in the U.S. Supreme Court or in the top court of another country — to achieve their aims.

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